Stapler v. State

• Decision Date: 10 May 1962
• Docket Number: 8 Div. 82
• Citation: 141 So.2d 181,273 Ala. 358
• Parties: James Wade STAPLER v. STATE of Alabama.
• Court: Alabama Supreme Court

Page 181

141 So.2d 181

273 Ala. 358

James Wade STAPLER v. STATE of Alabama.

8 Div. 82.

Supreme Court of Alabama.

May 10, 1962.

Lusk & Lusk, Guntersville, for appellant.

MacDonald Gallion, Atty. Gen., and Leslie Hall, Asst. Atty. Gen., for appellee.

COLEMAN, Justice.

This is an appeal from a decree in equity which ordered that the prosecution of a fifteen-year-old minor, under an indictment for murder and robbery, be transferred from the juvenile court to the circuit court.

On August 10, 1961, the grand jury returned the indictment and, on the same day, the circuit court ascertained that the minor was fourteen years of age and, therefore, under § 363, Title 13, transferred the cause to the juvenile court. On August 21, 1961, the juvenile court rendered judgment finding that the minor was more than fourteen years old, that he could not be made to lead a correct life and could not be properly disciplined under the provisions of Chapter 7, § 350 et seq., of Title 13, Code 1940, and transferring the cause back to the circuit court. Such a judgment by the juvenile court is provided for by § 364, Title 13.

From the judgment of the juvenile court, appeal was taken to the circuit court, in equity, as provided for by § 362, Title 13, which provides that on appeal, 'the circuit court shall try the case de novo,' and also that all appeals under this chapter shall take precedence over all other business of the court to which the appeal is taken.

The circuit court, in equity, after hearing testimony ore tenus, ordered the cause transferred to the circuit court, '* * * there to be placed upon the Criminal Docket of said Court and there to be proceeded against according to law.' The decree is assigned as error.

Appellant recognizes the rule of review that the appellate court will not reverse a decree rendered on testimony heard ore tenus by the trial court unless the decree is palpably wrong. Appellant insists, however, that a consideration of the evidence in the record shows that the decree is palpably wrong.

Appellee replies that the finding of the equity court, with reference to the delinquency of a minor, is not revisable by the Supreme Court in the absence of a clear abuse of discretion, citing Berry v. State, 209 Ala. 120, 95 So. 453; and Sims v. State Dept. of Public Welfare, 259 Ala. 283, 66 So.2d 460. We do not think that either case supports appellee's proposition, as we hereinafter undertake to show.

The correct determination of the power of the juvenile court, and our duty on appeal, must be determined from an examination of the statute.

So far as we are advised, § 364, Title 13, originated as § 11 of Act No. 340, General Acts of 1907, page 442. § 11 of the 1907 Act, which bears but slight resemblance to § 364 of Title 13, provided that when a child under fourteen years of age is arrested for violation of law, the child must not be imprisoned but shall forthwith be taken before the proper judicial officer provided by the 1907 Act. § 11 was codified as § 6458 of Code 1907.

§ 6458 of the Code of 1907 was amended by Act No. 506, General Acts 1915, pages 577, 584. In the last two sentences of § 9 of said act will be found the progenitor of the first sentence of § 364, Title 13. The 1915 Act provided as follows:

'* * * If at any time, said probate court is convinced that any child brought before it on summons or so transferred to its jurisdiction, cannot be reformed and brought to lead a correct life, said court may dismiss said petition and allow said child trial in a court of criminal jurisdiction, or order said child returned to the court in which the indictment, affidavit, or charge was pending, where upon the court to which said child is recommitted shall proceed to hear said cause as though no suspension had been entered in said case. * * *'

Act No. 295, 1923 General Acts, page 296, approved September 18, 1923, made extensive amendment to the juvenile offender statutes. The first sentence of Subdivision (2) of § 11 of the 1923 Act, page 310, and the first sentence of § 364, Title 13, Code 1940, are substantially the same. That sentence, as it appears in Code 1940, recites:

'If, at any time, after thorough investigation or exercise of its disciplinary measures, the juvenile court or judge thereof shall be convinced that a delinquent child, more than fourteen years of age, brought before it under the terms of this chapter cannot be made to lead a correct life and cannot be properly disciplined under the provisions of this chapter, the juvenile court or judge thereof shall have authority to transfer the care of such delinquent to the jurisdiction of any other court in the county having jurisdiction of the offense with which said child is charged, there to be proceeded against according to law. * * *'

The 1923 Act made two significant charges in the sentence. First, where the 1915 Act provided that the probate court might transfer 'any child,' the 1923 Act, and the 1940 Code, limit the power of the juvenile court so that it may transfer only 'a delinquent child, more than fourteen years of age,' and not just any child. Second, the 1915 Act provided that 'If at any time, said probate court is convinced' that any child before the court could not be reformed and brought to lead a correct life, the court could transfer the child, but the 1923 Act, and the 1940 Code, limit the power of transfer to '* * * any time, after thorough investigation or exercise of its disciplinary measures,' and not just any time.

Where the 1915 Act apparently granted a power to transfer without investigation or trial of such measures, the 1923 Act, and the present law, require, as a condition precedent to transfer, that the juvenile court either make a 'through investigation' of all pertinent circumstances, or 'exercise' the disciplinary powers of the juvenile court under the statute. To hold otherwise would be to ignore the clear meaning of the language of the 1923 Act. See Biennial Report of Attorney General, 1922-24, page 425.

In the instant case, there is no insistence that the juvenile court exercised 'its disciplinary measures,' and the order of the juvenile court to transfer the prosecution to the circuit court can rest only on the performance of the other condition which authorizes such transfer, namely, 'thorough investigation.'

Berry v. State, supra, was decided February 8, 1923, prior to the effective date of said Act No. 295, approved September 18, 1923. The Berry case was decided under the 1915 Act which did not require a 'thorough investigation' or the 'exercise of its disciplinary measures' by the juvenile court as a condition precedent to the exercise of its power to transfer the case against a minor, more than fourteen years of age, back to the circuit court.

The other case cited by appellee, Sims v. State Dept. of Public Welfare, supra, had nothing to do with the prosecution of a minor for crime. That case was a contest between grandparents and the Welfare Department for the custody of minor children and is not in point here.

In Ex parte State ex rel. Echols, 245 Ala. 353, 17 So.2d 449, also cited by appellee, the petitioner sought to prohibit the circuit court, in equity, from proceeding against a minor, or to compel transfer of the prosecution to the law docket with a jury. In the Echols case, the issue in the cause, trial of which petitioner sought to prohibit, was delinquency vel non, which is not the issue in the proceeding now under review. The issue here is whether the minor can be made to lead a correct life, etc., as the statute provides. With reference to that issue, and the transfer of the prosecution to the circuit court, which issue and transfer were not present in the Echols case, the court had this to say:

'The writ of prohibition is sought upon the theory that before the entry of the decree above noted by the juvenile court, that court had made an order or decree transferring the cause to the circuit court for indictment and trial for the alleged offense pursuant to § 364. See Berry v. State, 209 Ala. 120, 95 So. 453; Powell v. State, 224 Ala. 540, 141 So. 201, 212.

'This procedure is to be resorted to only when the juvenile court, 'after thorough investigation or exercise of its disciplinary measures,' 'shall be convinced' the 'delinquent child' 'cannot be made to lead a correct life and cannot be properly disciplined under the provisions of this chapter.' § 364.

'Not now considering the proper course to be pursued in case a proper order had been entered, but not now of record, investing the circuit Court with jurisdiction under § 364, we cannot, upon full consideration of the petition and exhibits, the answer of respondent and exhibits, the replication by the relator, and all testimony offered, hold other than that the cause is properly pending in the circuit court in equity on appeal for trial de novo under § 362.' (245 Ala. 353, 356, 17 So.2d 449, 450)

Appellee has cited no authorities other than the three cases we have mentioned and § 364 of Title 13. A case which, as we think, sheds some light on the interpretation of § 364, is Macon v. Holloway, 19 Ala.App. 234, 96 So. 933; cert. denied, 209 Ala. 580, 96 So. 936.

In the Macon case, the court considered an act of the legislature which applied to counties of certain population and related to dependent, neglected, or delinquent children, to wit: Act No. 40, General and Local Acts 1920, page 76, approved October 2, 1920. The first sentence of § 20 of that act may well have been taken as a model by the draftsman of Act No. 295, 1923 Acts, page 296, discussed supra. The 1920 Act, considered in the Macon case, in pertinent part recited as follows:

'Section 20. If at any time, after thorough investigation or trial of its disciplinary measures, the court or judge thereof is convinced that any delinquent child brought before it under the terms of this Act cannot be made to lead a correct life, and cannot be properly disciplined...